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What are the rules on paying for time spent putting on protective gear?

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in Compensation and Benefits,Human Resources

Q. Our company policy states that employees are not compensated for the time spent changing into their uniforms, which includes special protective wear. A new employee was surprised to find out he couldn’t clock in before getting geared up, as he did at his old company. Are we required to pay ­workers for that time, or is it up to the discretion of each individual company?

A. Under the Fair Labor Standards Act (FLSA), a principal activity—activity integral and an indispensable part of the activities for which the worker is employed—is compensable. The regulations provide that if an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity.

On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity.

The FLSA also provides that an employer is not re­­quired to compensate a worker for time spent “changing clothes” if that time is excluded by a collective bargaining agreement applicable to the particular employee (even if it is a principal activity).

Further, the 3rd Circuit has weighed in on the issue and held that time spent changing into protective gear can be considered “work” and may be compensable if it is not de minimis. Work that is de minimis is not compensable because it constitutes trivial quantities of work.  

Given the uncertainty of the law, the most prudent option would be to pay employees for the time spent changing into protective gear if it constitutes a principal activity and is not de minimis.

It is worth noting, however, that recently, the U.S. Supreme Court agreed to hear a case addressing whether workers must be paid for time they spend donning and doffing protective equipment and then traveling to and from their workstations. You should be alert for the decision in this case.

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